The co-chairs of a Maryland regulatory committee warned Friday that a failed execution attempt in Ohio could be repeated here without mandatory medical training for executioners and raised concerns about the use of lethal drugs deemed too cruel for even animal euthanasia.
The legislators - Sen. Paul G. Pinsky and Del. Anne Healey, both Prince George's County Democrats who oppose the death penalty - sent those concerns in a letter to the Department of Public Safety and Correctional Services, throwing up a new barrier to resuming executions in Maryland.
"I would characterize the regulations as vague and somewhat contradictory," Healey said in an interview. "We need some more clarity about what they actually mean and what they think they're trying to do."
Her legislative panel has oversight of state agency regulations, including the correctional department's recommended death penalty guidelines; once it approves them, it would mean an end to a three-year de facto moratorium on executions.
Gov. Martin O'Malley, a death penalty opponent, said grudgingly in April that executions would resume after his push to repeal the law failed. That led to the development of the proposed regulations, which the 20-member Administrative, Executive and Legislative Review Committee - more than two-thirds Democratic - has been studying since September.
Its co-chairs' latest concerns, developed without the full committee's input, have led some critics to wonder whether the apparent foot-dragging is an attempt to extend the moratorium, led by Democrats who oppose executions.
"These [questions] are just part of the continued process of delaying the reimplementation of the death penalty," said Sen. Richard F. Colburn, an Eastern Shore Republican and member of the committee. He says he was not consulted. (The Baltimore Sun e-mailed his office a copy of the committee's letter.)
"The majority of that committee is liberal, and the majority of that committee is more likely against the death penalty," Colburn said. "I don't know how you can draw a regulation process that will be acceptable to a committee that is in fact against the death penalty."
But Healey said the concerns are simply a necessary part of the committee's due diligence.
"This is a process that we use with regulations that are complicated or controversial on a regular basis," Healey said. "Sometimes the regulations come in and there's problems with that, and we put them on hold, and try to get the department to look at them again."
O'Malley spokesman Shaun Adamec said that "the fact that the letter exists and that the questions are being asked illustrates that the committee is taking the process seriously, that the process is under way, and that it's important that we let the process play out."
The committee asked the correctional department to delay adoption of the rules in September so members could study issues they raised. Healey pointed out that officials could ignore her concerns and move ahead 30 days after sending the co-chairs a letter of their intent to do so.
If that were to happen, Healey and Pinsky would likely call for a hearing involving the full committee. But it doesn't look like that will be necessary.
Corrections spokesman Rick Binetti said the department "will work with the committee and provide them whatever information they request ... as quickly as possible."
Maryland's death penalty has been on hold since the Court of Appeals ruled in December 2006 that the state's lethal injection protocol should have been approved using certain legislative procedures, creating a de facto moratorium on state executions.
Lawmakers considered making the moratorium permanent during this year's legislative session. But they ultimately chose to limit, rather than abolish, the death penalty, leading corrections officials to move forward to comply with the necessary legislative procedures to make the protocol legal.
The department published 22 pages of proposed rules in the Maryland Register at the end of July, defining a chain of command and pre-execution procedures by the day. Five days before execution, for example, the maintenance team is supposed to test the emergency generator and the telephone lines in the lethal injection room.
But they failed to address four major areas of concern, according to Healey and Pinsky.
"The court case that brought these [issues] before us in the first place was pretty clear in wanting to have a process, and we don't think that they've met the standard of the process," Healey said. "They haven't given us enough detail about how they're going to operate."
The letter she and Pinsky sent outlines four main issues questioning what regulated procedures will be used, the drug protocol, the training of lethal injection personnel, and what other state practices were considered in creating the plan.
It specifically raises concerns about using paralyzing drugs, considered unacceptable for animal euthanasia, that would prevent an inmate from signaling whether he feels pain. It mentions a recent case in Ohio in which executioners struggled for two hours to locate a usable vein, with the condemned man's help, but eventually had to abort the lethal injection.
"Adequate training of the department lethal injection team is of utmost importance so that this situation does not happen in this state," they wrote in the letter.
Some legislators, including Colburn, say they do not have the same concerns.
"The only problem with the death penalty in Maryland is that we don't use it enough," he said, bemoaning the fact that only five executions have taken place in the past 33 years. He said he doesn't see the divide as Republican versus Democrat, but rural versus urban.
"The majority of the people on the Eastern Shore believe that if you rape and murder somebody, you ought to at least face the possibility [of death]," Colburn said. "If you live by the sword, you die by the sword."